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The Indefensible Defense
Generally, an insurer has three options when a claim is tendered for defense. An insurer may deny any obligation to defend, agree to fully defend without reservation, or agree to defend while reserving rights to deny coverage later. Policyholders need to consider a whole host of issues when an insurer agrees to defend under a reservation of rights including, but not limited to, who controls selection of underlying defense counsel, rates to be paid to that counsel, privilege issues associated with underlying counsel communications, and potential conflicts between the policyholder's and the insurer's interests.
One source of increasing disputes between policyholders and their insurers is the increasing attempted use of so-called “litigation management guidelines” by insurers in addressing their defense obligations. Contrary to what insurers often claim, these types of guidelines generally do not have any binding legal effect. Policyholders should consider carefully how to respond to an insurer's attempt to impose such guidelines.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.